Citation Nr: 1215617
Decision Date: 05/01/12 Archive Date: 05/10/12
DOCKET NO. 05-14 746 ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in Montgomery, Alabama
THE ISSUE
Entitlement to service connection for an acquired psychiatric disorder, to include schizophrenia, bipolar disorder, posttraumatic stress disorder (PTSD), and/or major depressive disorder (MDD).
REPRESENTATION
Appellant represented by: Disabled American Veterans
ATTORNEY FOR THE BOARD
D. Johnson, Counsel
INTRODUCTION
The Veteran served on active duty from May 1981 to October 1981.
This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2004 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama.
The Veteran was scheduled for an RO hearing in March 2006, but he failed to report as scheduled. As such, his hearing request is considered withdrawn.
In February 2012, the Board requested the opinion of a medical specialist from the Veterans Health Administration (VHA) regarding the etiology of the Veteran's psychiatric disorder. The Veteran was notified that the Board had requested a specialist's opinion in conjunction with the adjudication of his appeal by way of notice sent to him in February 2012. The requested opinion was received in April 2012. The Veteran was not been provided with a copy of that opinion nor notified of his right to submit additional evidence or argument within 60 days of the date of notice of the opinion; however, there is no prejudice as the Board is granting the claim in full based on the VHA opinion.
FINDING OF FACT
The persuasive medical evidence establishes that a psychotic disorder with polysubstance abuse had its onset in service.
CONCLUSIONS OF LAW
The criteria for service connection for a psychotic disorder with substance are met. 38 U.S.C.A. §§ 1131, 1154(a), 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2011).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
The grant of service connection for an acquired psychiatric disorder with a polysubstance abuse disorder constitutes a full grant of the benefits sought. As such, no discussion of VA's duty to notify or assist is necessary.
Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. See Davidson v. Shinseki, 581 F.3d 1313 (Fed.Cir.2009); Hickson v. West, 12 Vet. App. 247, 253 (1999); Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed.Cir.1996) (table). The second and third elements may be established by showing continuity of symptomalogy. Continuity of symptomatology may be shown by demonstrating "(1) that a condition was 'noted' during service or any applicable presumption period; (2) evidence of post-service continuity of the same symptomatology; and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post-service symptomatology." Barr v. Nicholson, 21 Vet. App. 303, 307 (2007); see also Davidson, 581 F.3d at 1316; Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007) (holding that "[w]hether lay evidence is competent and sufficient in a particular case is a factual issue to be addressed by the Board").
Service connection for certain chronic disorders, including psychoses, may also be established based upon a legal "presumption" by showing that it manifested itself to a degree of 10 percent or more within one year from the date of separation from service. 38 U.S.C.A. § 1112 (West 2002); 38 C.F.R. §§ 3.307, 3.309 (2011). Service connection may also be granted for any disease diagnosed after service when all the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d) (2011).
With respect to claims filed after October 31, 1990, an injury or disease incurred during active service will not be deemed to have been incurred in line of duty if the injury or disease was a result of the person's own willful misconduct, including abuse of alcohol or drugs. 38 U.S.C.A. § 105; 38 C.F.R. § 3.1(m). The isolated and infrequent use of drugs by itself will not be considered willful misconduct; however, the progressive and frequent use of drugs to the point of addiction will be considered willful misconduct. 38 C.F.R. § 3.301(c)(3). Where drugs are used to enjoy or experience their effects and the effects result proximately and immediately in disability or death, such disability or death will be considered the result of the person's willful misconduct. Id. However, it has been determined that the amendments do not preclude service connection under 38 C.F.R. § 3.310(a) of a substance abuse disability that is proximately due to or the result of a service-connected disease or injury. See VAOPGCPREC 7-99 (June 9, 1999); see also Allen v. Principi, 237 F.3d 1368, 1376 (Fed. Cir. 2001). In Allen v. Principi, it was indicated that claimants are only entitled to secondary service connection if they can "adequately establish that their alcohol or drug abuse disability is secondary to or is caused by their primary service-connected disorder." It was further stated that such benefit would only result "where there is clear medical evidence establishing that the alcohol or drug abuse disability is indeed caused by a Veteran's primary service-connected disability, and where the alcohol or drug abuse disability is not due to willful wrongdoing." Id.
In making all determinations, the Board must fully consider the lay assertions of record. A layperson is competent to report on the onset and continuity of his current symptomatology. See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a Veteran is competent to report on that of which he or she has personal knowledge). Lay evidence can also be competent and sufficient evidence of a diagnosis or to establish etiology if (1) the layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). When considering whether lay evidence is competent the Board must determine, on a case by case basis, whether the Veteran's particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau v. Nicholson, 492 F.3d 1372, 1376-77.
The Board is charged with the duty to assess the credibility and weight given to evidence. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997), cert. denied, 523 U.S. 1046 (1998); Wensch v. Principi, 15 Vet. App. 362, 367 (2001). Indeed, in Jefferson v. Principi, 271 F.3d 1072 (Fed. Cir. 2001), the United States Court of Appeals for the Federal Circuit (Federal Circuit), citing its decision in Madden, recognized that that Board had inherent fact-finding ability. Id. at 1076; see also 38 U.S.C.A. § 7104(a) (West 2002). Moreover, the United States Court of Appeals for Veterans Claims (Court) has declared that in adjudicating a claim, the Board has the responsibility to weigh and assess the evidence. Bryan v. West, 13 Vet. App. 482, 488-89 (2000); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992).
As a finder of fact, when considering whether lay evidence is satisfactory, the Board may also properly consider internal inconsistency of the statements, facial plausibility, consistency with other evidence submitted on behalf of the Veteran, and the Veteran's demeanor when testifying at a hearing. See Dalton v. Nicholson, 21 Vet. App. 23, 38 (2007); Caluza v. Brown, 7 Vet. App. 498, 511 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996).
The Veteran seeks service connection for an acquired psychiatric disorder that he asserts was incurred during service. In numerous statements submitted in support of his claim, the Veteran reported that while in Frankfurt, Germany, three fellow servicemembers put an illicit drug in his drink and he attributes this action to his current psychiatric disorder.
The Veteran's service induction examination does not reflect any subjective psychiatric symptoms or pertinent diagnoses. There is no indication of psychiatric symptoms or behavioral problems in service until September 1981, when he was stationed in Germany. Upon psychiatric evaluation in September 1981, a psychiatrist indicated that the Veteran had experienced considerable tension that was essentially related to the inability to escape the intensity of interpersonal relationships. The psychiatrist further indicated that prior to coming into the Army the Veteran had similar difficulties, but was able to cope by being by himself. The psychiatrist noted that the current clinical concern was with regards to a potential psychotic illness if the stress continued, and that psychological testing supported that impression. The psychiatrist diagnosed schizoid personality and recommended discharge as soon as possible. The service records do not indicate that the Veteran had ingested any illicit drugs or hallucinogenic substances, or that he had been physically assaulted, prior to his evaluation. The Veteran was discharged approximately one month later, in October 1981, under honorable conditions for failure to maintain acceptable standards of retention. On the October 1981 discharge examination, the Veteran indicated he had a problem with depression. The examining clinician noted on the form that the Veteran worried a great deal about problems at home.
In lay statements submitted in support of the claim, the Veteran's family members reported having witnessed a drastic change in his behavior and demeanor after he was discharged from service. They all stated that after service the Veteran was always crying, had mood swings, and was withdrawn. His father recalled that the Veteran told him someone had put a drug in his drink and that he was robbed and got in a fight. The Veteran's mother noted that he was "full of joy" after basic training, but while in Germany he wrote a letter to her indicating that he was feeling suicidal. The Veteran's sister recalled that their mother called Red Cross after receiving the Veteran's letter about being suicidal.
A February 1984 outpatient treatment note from Fairview Hospital represents the first evidence of psychiatric treatment after service. This record shows that the Veteran was evaluated and treated for a diagnosis of depressive reaction with paranoid features. Additional post-service private treatment records from 1984 to 2001 reflect various psychiatric diagnoses of chronic paranoid schizophrenia, bipolar disorder, major depressive disorder, schizoaffective disorder, adult anti-social personality disorder, and impulse control. These records also reflect drug abuse, including overdoses of cocaine and heroin, and diagnoses of cocaine dependency, history of polysubstance abuse, and drug abuse. None of these records contain any medical opinions that link any of the noted diagnoses to military service. Current VA treatment records include a diagnosis of depression, not otherwise specified (NOS) by a psychiatrist and a diagnosis of probably PTSD by a physician's assistant.
In May 2009, the Board remanded the claim to afford the Veteran a VA examination by a psychiatrist or psychologist. In January 2010, a primary care physician reviewed the claims file, examined the Veteran, and diagnosed depressive disorder, not otherwise specified. The examiner stated that the Veteran did not meet the criteria for a diagnosis of schizophrenia, bipolar disorder, or PTSD. The examiner also stated the Veteran "had a long and extensive history of depression" that was not related to any events or circumstances that took place in service, but was much more likely due to his recent incarceration, homelessness, and having only recently had a job with his CWT placement.
In a September 2009 statement, the Veteran stated that his psychiatric problems did not pre-exist service. He stated that the only problem he had was a learning disability in school that caused him some difficulty keeping up with his class.
In April 2011, the Board remanded the claim for another medical opinion regarding the etiology of the Veteran's claimed psychiatric disabilities with instructions that the opinion was to be provided by a licensed psychiatrist or psychologist.
The Veteran was evaluated by a VA examiner (a psychiatrist) in June 2011. Following review of the claims folders and a clinical evaluation, the examiner diagnosed a polysubstance related disorder. The examiner opined that after reviewing all of the evidence, it is clear that the Veteran has displayed symptoms of many mental health disorders and has been given many diagnoses including paranoid schizophrenia, bipolar disorder and PTSD. With respect to whether there was evidence of a psychiatric disorder prior to service, and if so, whether it was aggravated by service, the psychiatrist stated that while there is some evidence to suggest that the Veteran was having symptoms prior to service (as he left high school in the 11th grade and his family signed for him to join the military), the evidence is not enough to diagnose anti-social behavior. He noted further that it was clear the Veteran had more problems as he joined the service, but he continued to use drugs and alcohol (by his own admission). He got in some trouble but the military records are cryptic revealing only "an inability to adapt to military life." The Veteran only served in the military for 5 months before his discharge, thus it is difficult to see a pattern. Since his discharge, he has had multiple admissions for over 20 years for polysubstance abuse and he has been treated once in a substance abuse treatment program. The examiner further noted that his review indicated that the Veteran did not appear to meet the criteria for schizophrenia or bipolar disorder as each admission he has had was triggered by substance abuse. The only diagnosis the Veteran clearly meets is polysubstance abuse.
In February 2012, the Board requested the opinion of a medical specialist from the Veterans Health Administration (VHA) regarding the etiology of the Veteran's psychiatric disorder. In April 2012, a specialist reviewed the evidence of record and provided a lengthy and detailed opinion, which reflects a thorough review and consideration of all of the pertinent evidence of record. The specialist acknowledged that there is lack of clarity as to the Veteran's exact diagnosis; however, he stated that the standard at this time is not to establish diagnosis with certainty. In response to the questions posed by the Board, the specialist opined that there is substantive evidence that the Veteran has an unspecified psychotic disorder illness that had onset in, and is etiologically related to, his military service and represents a continuation of his original illness albeit in a less overtly psychotic form. He also opined that it is at least as likely as not that the Veteran's substance use is a manifestation of his psychiatric disability. He explained, however, that there is not sufficient evidence to support a theory that the Veteran's psychotic illness was caused by his substance use. The specialist supported all of these opinions with thorough, clear, and well-analyzed clinical rationales. The specialist also noted that the family's statements and the psychiatric evaluations, which clearly describe presence of psychotic illness in the early 1980s, were either not considered or not sufficiently weighted in the previous VA examinations. However, family reports regarding the onset and manifestations of the Veteran's psychiatric illness are appropriate to use as collateral in forming a psychiatric assessment and/or opinion.
Based on the evidence, service connection for an acquired psychiatric disorder is warranted. The competent medical evidence of record has establishes a current disability exists. The record reflects various psychiatric diagnoses such as probable PTSD, depression, and depressive disorder, NOS and polysubstance abuse disorder. A VHA specialist has clarified, however, that the Veteran's current and more appropriate diagnosis is an unspecified psychotic disorder, as the standard at this time is not to establish a diagnosis with certainty. The June 2011 VA examiner also provided a diagnosis of polysubstance abuse disorder, a diagnosis which the Board notes was not explicitly rejected by the VHA specialist upon subsequent review of the file after the VA examination.
In addition to current diagnoses, a causal nexus has been established. The persuasive medical evidence supports finding that a nexus exists between the current unspecified psychotic disorder and service. The VHA specialist opined that there was sufficient evidence showing that the psychotic disorder had onset in and was etiologically related to service. Further, the current unspecified psychotic disorder represents a continuation of his original illness, albeit in a less overtly psychotic form. The specialist also opined that it is at least as likely as not that the Veteran's substance use was a manifestation of his psychiatric disability.
The Board has considered the negative nexus opinions provided by the VA examiners in May 2009 and June 2011; however, after careful review the Board finds that the VHA specialist's opinion is the most persuasive. See Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997). The Court has held that it is not error for the Board to favor the opinion of one competent medical expert over that of another, provided that the Board gives an adequate statement of reasons and bases. Owens v. Brown, 7 Vet. App. 429 (1995). The specialist's report was detailed and comprehensive in nature, more so than the VA examiners' reports, and was supported with thorough, clear, and well-analyzed clinical rationales. Also, the specialist's opinion reflects consideration of the Veteran and his family's credible and competent lay statements regarding the onset and continuity of his psychiatric symptoms after service, which appears to have not been adequately considered by the VA examiners. Further, the specialist's findings and opinions are consistent with the Veteran and his family's statements.
In sum, the evidence supports a finding that the Veteran's psychiatric disorder was incurred in and is etiologically related to his military service. Accordingly, service connection for psychotic disorder is warranted. 38 U.S.C.A. § 5107(b). Moreover, the persuasive medical evidence supports a finding that his polysubstance abuse disorder was caused by his acquired psychiatric disorder. As indicated, service connection may be warranted under 38 C.F.R. § 3.310(a) for a substance abuse disability that is proximately due to or the result of a service-connected disease or injury. See VAOPGCPREC 7-99 (June 9, 1999); see also Allen v. Principi, 237 F.3d 1368, 1376 (Fed. Cir. 2001). The Board finds that in this case, the competent medical evidence adequately establishes that the Veteran's current polysubstance abuse disorder is caused by his primary, and now service-connected, unspecified psychotic disorder. As such, service connection for psychotic disorder with polysubstance abuse is warranted
ORDER
Service connection for psychotic disorder with polysubstance abuse is granted.
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STEVEN D. REISS
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs